*1
7, 1988,
Appeals
Argued
September
of the Court of
decision
and submitted
affirmed,
grounds,
of the trial court reversed and
the decision
but on different
9, 1989
May
proceedings
the trial court for further
remanded to
CORPORATION, LTD.,
LLOYD
Review,
Petitioner on
al,
et
WHIFFEN
Respondents on Review.
A38839;
S35170)
(CC A8512-08127; CA
SC
Gregory Kafoury, argued the cause and filed a response petition respondent on review Eric Stachon. *2 appearance respondents Whiffen,
No on review Weitzman, and John Doe 1-100. Hinkle, Stoel, Rives,
Charles F. Boley, Grey, Jones & Portland, filed a brief on behalf of amicus curiae Meyer, Fred Inc. Sack, York,
Edward York, J. New New and Gile R. Downes, Schulte, Anderson, Carter, Downes & DeFrancq, P.C., Portland, filed a brief on behalf of amicus curiae Interna- tional Shopping Centers, Council of Inc. Anderson, Miller, Nash,
Mark A. Wiener, Hager & Car- lsen, Henry Kantor, Portland, filed a brief on behalf of amicus curiae The ACLU Oregon. Foundation of Coon,
James Imperati, Barnett, S. Coon, Sherwood & P.C., Portland, filed a brief on behalf of amicus curiae Lawyers’ National Guild. Peterson,
Before Justice, Linde, Chief Campbell,** Car son, Gillette, Justices, Jones and Hoomissen, and Van Justice pro tempore.
JONES, J.
** J., Campbell, 31,1988. retired December
JONES, J. The issue of a privately is whether owner owned shopping open public purposes center for commercial rights and an against obtain declaration persons entering shopping petition sig- center obtain natures; or whether the defendant-solicitors have a petition signatures solicit mall without shopping plain- permission. tiffs hereby circuit court ordered that “defendants are and enjoined entering upon plaintiffs private
restrained from expressions opinion to exercise gather their or to signatures process in the initiative and referendum without permission or consent.” The Court of Appeals reversed, order holding violated defendants’ expression I, under Article section Constitu tion, and that defendants could their free expression exercise rights in the shopping subject time, center to reasonable place, regulations. Lloyd and manner Corporation v. Whiffen, 89 App 750 P2d We affirm decision of Appeals, Court of grounds. but on different
FACTS (Cen- Most of the are undisputed.1 Lloyd facts Center ter) a retail shopping center located in Portland. Plaintiff of fee owner title to the land the occupies. Center Five public streets cross Center and at least six other public partly run total, streets into and around the Center. there are more than 66 of publicly blocks owned sidewalks in the adjacent public park. Center. There is also an privately stores, owned professional areas the Center contain offices, walkways, open business covered and covered parking. areas for automobile At least nine stores open onto or directly public within a few feet of streets. are There public stops on adjacent public bus streets side- walks in the Center. All entrances to exits from the Cen- ter cross sidewalks.
The privately walkways mall and are designed, owned parties agreed transcript injunction hearing, together that the with an agreed pleadings, request statement of facts and the would be the record on the for a 79C(2). injunction. See final ORCP business, please
decorated, managed promote retail to clients, customers, patients, plaintiffs tenants and their the Center prospective customers to come to encourage and to of serv- they may buy partake where view and merchandise or beds, murals, Gardens, statuary, various other ices. flower escalators, art, benches, stairways elevators and works of and information booths adorn the bridges, and directories music is broadcast in the private walkways. mall and Recorded part rink and the Center as desired throughout ice pay Plaintiff and tenants the entire atmosphere. areas in the maintaining privately cost of owned common is intended Center, per year. which exceeds million All this $1 purchasing environment conducive to pleasant to create merchandise or services. inception plaintiff of its business in
Since attempted prohibit has solicitation without discrimination pri- in the political petitioning leaflets or or distribution walkways mall and of the Center. Neither ten- vately owned permitted engage ants of the Center nor nontenants are areas, any activity. private such At each of 25 entrances to the signs walkways stating: has embedded in the plaintiff — Lloyd public are “NOTICE Areas Center used Lloyd public ways but are for the use of Center tenants not and the public transacting business them. Permission to with any Lloyd Corporation, may be revoked at time. use said areas Ltd.” contention that supports plaintiffs
The record purpose whose is not to persons limit access of attempts to or its tenants. It shop plaintiff “do business with” however, person exclude a obvious, plaintiff would not shopper or a at the employee to meet an who comes exer- the mall for persons simply through Center or who walk areas of the public open that the signs cise. Plaintiffs tell (2) (1) are for the use of the public ways, are not Center business with public transacting and the Center’s tenants to use the them, (3) permission revoke plaintiff entry to casual deny They purport time. do not any areas at from one crossing someone They imply do not visitors. area is a tres- Center’s through the street to another open-ended makes no thing one is clear: passer. But to debate as a forum to use the Center invitation to the public issues. the Center to entered
In December defendants
679 petitions. parties on three initiative gather signatures defen- plaintiff requested of the have agreed “[e]mployees petition sig- dants and others who seek to initiative gather their on the privately natures to cease activities owned portions Lloyd persons go Center and asked those to to have or areas signatures.” sidewalks other to obtain activity After request, this defendants continued their they declared would to arrested continue do so unless or enjoined. Accordingly, plaintiff litigation for commenced this an for injunction declaratory judgment.
ANALYSIS I.
From the this beginning, parties have treated as a constitutional enjoin case. Plaintiff claimed that a refusal to activity defendants’ would a taking property. constitute of its they Defendants counterclaimed for a declaration that have a “right” Oregon under the gather Constitution to initiative petition signatures the Center.2 Judicial opinions elsewhere up debate, take deep the constitutional displaying divisions about the analysis.3 debate, correct will not join We in that 2 Defendants assert issued circuit court violated their rights Oregon Specifically, they under the Constitution. defendants maintain that right signatures expression assembly have a to solicit in the under Center the free I, I, provisions 8, provides: of Article sections 8 and 26. Article section passed expression restraining opinion, “No law shall be free or restrict- write, ing right freely whatever; speak, print any subject every on but
person responsible right.” shall be for the this abuse of I, 26, provides: Article section passed any restraining “No law shall be the State from inhabitants of
assembling together
peaceable
good;
in a
manner
consult for their common
nor
Representatives;
instructing
applying
Legislature
from
their
nor from
greviances
redress of
[sic].”
enjoin
Defendants filed counterclaims in
attempting
asked
which
the court to
from
eject
portions
privately
from
owned
them
of the Center and to
gather
declare that
have a
defendants
under the
Constitution
initiative
petition signatures there.
3
differing
grounds
Most of the
are
cases
decided on
constitutional
and are not
helpful
analysis
disposing
to our
on a
of this case
nonconstitutional basis. At last
count,
Venture,
shopping
seven cases
Fiesta Mall
et al. v.
favored
malls:
Mecham
Committee,
(Ariz App
31, 1988); Cologne
Recall
2 CA-CV 88-0195
Ct
Oct.
v. West
Associates,
48, 469
(1984);
Michigan
Farms
Lobby,
192 Conn
A2d 1201
Woodland v.
Citizens
188,
(1985);
Mall,
423
NW2d
Mich
378
337
Shad Alliance v. Smith Haven
66
(1985);
Felmet,
NY2d
488 NE2d
however,
examining
parties’
on sub-
without first
practice
level.
is to refrain from constitu
constitutional
Our
ordinary legal
resolve
holdings
principles
tional
unless
cannot
535, 538-39,
dispute.
Edgmand,
State v.
306 Or
761 P2d
Res.,
(1988);
Dept.
Planned Parenthood Assn. v.
Human
562, 564,
(1984).
297 Or
II.
for
injunction against
Plaintiff seeks an
defendants
plaintiffs
property.
with
use of its
unreasonably interfering
plaintiffs
that defendants are on
Plaintiff has established
indeed,
trans-
permission;
defendants are
without
prohibition.
making
success in
this
gressing a direct
Plaintiffs
Co.,
Major,
(1986);
23,
v.
necticut
Ins.
Jacobs
General
Pa
This court has
that equitable remedies
against
invasions of real property
inexorably
do not follow
entry.
Bernard,
when a
In
deny
landowner seeks
Atkinson v.
Inc.,
(1960),
223 Or
abatement
law
and the
of nuisance rather than
Atkinson,
trespass applies.”
that of
Similarly, Stallings, in York v. 217 341 Or P2d 529 (1959), court the characterized as a the “nuisance” invasion of property by particulate landowners’ fallout and noise from a “Turning sawmill. The court wrote: to applicable the rules of law, we take first note the an proposition injunction is 5 Hoptowit, 317, 328, 237 See Bros. Co. v. cert den 193 Or P2d US 343 Seufert Helens, (1951); 654, 664, Columbia Fishermen’s Union v. St. 926 160 P2d 195 Or 87 Whited, (1939); 255, 266, 142 779, 146 (1915); Central Irr. Co. v. P P 76 Or 815 Dichdel, Co., 86, 91-93, 139 (1914); Stotts v. v. Miami Anderson Lumber 70 Or P 932 Dean, 149, 160, Chapman (1911); 475, 479-80, v. 59 Or 116 P 1056 58 Or P 154 extraordinary only upon and will remedy granted
an be clear Although Or at convincing proof.” 19. the relief, entitled to some were injunction
“it does
follow
an
should issue as a matter
in
injunction
The court
refuse an
certain cases
course.
hardship
injunction
the
where the
caused to
defendant
the
greatly
resulting
plaintiff.
outweigh
would
the benefit
to the
issue
matter of
or
injunction does not
as a
absolute
unqualified right
subject
but
to the sound discretion of the
is
* *”*
court.
“
if
hardship likely
to
‘The relative
to result
the defendant
denied,
if
injunction
granted
to
it
appro-
determining
one of the factors
be considered
”
priateness
injunction against
217 Or
23.
of an
tort.’
opinion
continued:
accepted
balancing
has
doc-
“This court heretofore
v.
trine
In Fraser
involving
cases
inconvenience.
Portland,
City
92, 98,
[1916],
its arm and refuse to issue an violated, legal right has though even an been admitted * * * appears when it issuance cause serious inconvenience loss without would ” advantage complainant.’ correspondingly great at 24. The York court to “unreasonable inter- limited the decree plaintiffs’ enjoyment of their ference” with the take evidence remanded the case the circuit court further on the fallout issue. stake, however, damages were at the court
When
trespass”
for what
earlier charac-
has allowed an “action of
deciding
a landowner
as “nuisance”
whether
was
terized
enjoin
invading conduct.
a matter of
entitled as
Co.,
Reynolds
Metals
(1959),
Martin
whether the defendant’s acts
invaded
interest
in
“the
possession
exclusive
of land” (trespass), or their interest
in
enjoyment”
(nuisance),
“the use and
of the land
noting that
the same conduct
invade both interests.
“The explained case can be in terms of this point view, i.e., latter of glare that the lights of defendant’s regarded could be as an trespass, intrusion within the of law but had no to treat the intrusion as actionable in plaintiffs view of the nature of use and the manner in which the defendant interfered with it. Had the purposely, defendant not as legiti- incidence of his own use, rays mate directed the light against might screen the court position well have taken the that the plaintiff could trespass have in recovered action. These trespass illustrations demonstrate that the tort of involves process, weighing similar to that involved the law of nui- sance, although to a more limited extent than in nuisance and i.e., purpose, for a different in the one case to define the possessor’s possession, interest exclusive and in the other possessor’s enjoyment.” define the interest use and Or at 96. short, the cases show invasions another’s property real are always enjoined, even when the invasion qualifies “trespass” for purposes liability damages. The cases can be distinguished insofar as the harmful invasion takes a form other than the entry human beings on the land, owner’s but a distinction without a real dif- ference. The shining unwanted light upon the screen of an in Amphitheaters, outdoor movie theater Inc. or the noxious poisoning fallout Martin the cattle in might well cause more harm to the landowners’ enjoyment use and their than presence persons unwanted among vis- iting a shopping center. us,
In the case before we are not dealing private with a Instead, face a repeating trespass. we simple nuisance or *9 very public a real interest is at stake. situation in which injunction if would case, a not issue an such the court should public interest unless without injury cause serious to the a equivalent experience or his would equitable relief the owner more injury. serious
Here, is defined. Defendants public interest well Or public lawmaking. initiate signatures seek to collect Const, chapter Statutes IV, Art 1. Revised § obtaining petitions of and wholly process filing devoted one likes signatures. right go It does not create wherever plausible often there will be no pursuit signatures, of property. else’s This necessity to do so on someone showing however, held, may only regulate, that not recently court laws people to reach entirely bar, entry even on residential City v. community interest. Hillsboro on matters of social or Purcell, 547, 8-9, P2d 510 & nn One 555-56 hardly recognize sign deny can that the statutes strong signatures of others and or to seek the petitions facilitating process. that public interest policy of oppose public gather- not Plaintiff does activity not want the simply It does ing petition signatures. usurping space for which property, its private carried out on its tenants. Plaintiff charges for which it plaintiff paid hardships must balance benefits recognizes that the court injury will proceeding, alleging “greater that equitable in this than will be by the denial relief upon plaintiff inflicted be by granting relief.” upon inflicted defendants plaintiffs allegations, we evaluate addressing Before signature- public on the interest. injunction’s effect political form petitions is a political gathering process is one of our speech that free no one contests speech and in his Justice Brandéis said society’s rights. As precious most 274 US Whitney California, concurring opinion in (1927), who won L Ed 1095 Ct S “[t]hose ourj ** * free- menace to greatest that believed independence political is a I discussion public people; is an inert dom of the principle be a fundamental this should duty; this is a funda-1 add that might We government.” American j No doubt Oregon government well. principle mental interest. very important public activity involves a defendants’ public seriously injured isBut interest if defendants’ activity completely blocked at the Center? We believe that it is.
Plaintiff claims that defendants have full access to public park, forums, sidewalks, traditional such as the adjoining private property. pub- and streets But the gather public park lic does or use the outside side- great process gathering signatures walks in number. The — — substantially impaired almost doubled in time if con- public walkways parks ducted on the or in instead of in the walkways. Shopping part mall and on its malls have become Large public gather American life. numbers of the there. Although plaintiff private tries to cloak a mall as a place, private place. it is the antithesis of a
We conclude that if defendants are denied access to plaintiffs private property, interest served activity injury. defendants’ will sustain serious But this con- clusion alone does not decide the issue before us. We must plaintiff proven address whether has that defendants’ activi- seriously injure enterprise ties will the commercial at the Cen- ter. complaint right equitable
Plaintiffs overstates its to Taking plaintiffs position literally, open relief. it could walkways, malls, gen- and other common areas of the Center erally shopping to the stream of visitors on which a mall depends discussing forbid but some or all of these visitors from politics shopping sharing while window meal; or it could petitions allow to solicitors circulate for measures favorable to opposes; its business interests but not for measures that it (if contrary) could there were no law to the exclude members religions, groups collectively races, some or ethnic or indi- vidually explanation without if that were deemed to enhance atmosphere motivating customers; its desired and it could equity demand exclusions, the aid of to enforce the inall “trespass.” argument name of Such an evokes memories of generation ago by managers claims made a branch of national corporations segregated passage communities before the See, e.g., Maryland, Bell v. 378 US
open accommodation laws.6
(1964)
J.,
(Douglas,
The main litigation, however, focus of this is not on benign political discussion, casual but on the activities of gathering defendants petition signatures in the Center’s common This presents areas. an entirely question different beyond and goes far expressions opinion. nonobtrusive It stopping potential involves the customers and the distrac tion of those customers plaintiffs from commercial enter prise. Plaintiff, with remarkable prescience, pleaded the essence of the tests we have set forth as a predicate for the relief it alleged seeks. Plaintiff it will suffer “great and irreparable injury” virtue of defendants’ activities and that activity “defendants’ unreasonably has interfered with the plaintiffs use the property.”
The record reveals that some the signature-gather- ing activity does temporarily interfere with the commercial activity at the Center. gatherers Some apparently “but- tonhole” potential customers and up others set card tables heavily trafficked areas to project facilitate the at hand. Such obtrusive activity can be enjoined. But petition not all sig- nature-gathering activity on plaintiffs premises can be enjoined.
The trial court went issuing too far in an injunction providing hereby “defendants are restrained enjoined entering from upon plaintiffs private property to expressions exercise their of opinion signatures or to gather the initiative and plaintiffs referendum process without per- mission or Clearly consent.” they can if do reasonably so peaceably. Moreover, plaintiff is not entitled an injunc- prohibit tion to peaceful of signatures solicitation in the mall or on walkways its substantially does not interfere with activity the commercial on premises. The solicitation of signatures of patrons does not in and of itself constitute sub- stantial interference. The public policy behind the signature- gathering process equitable limits enforcement of preferred total exclusion signature solicitors. however,
The court may, issue an injunction impos- ing reasonable on any attempted possession {e.g., restrictions *12 tables) s any part plaintiff defendants of
setting up card on the may place reasonable restrictions premises also in signatures time, place, seeking petition and manner of walkways or elimi- on its so as to reduce plaintiffs mall and distraction, confining signature short of nate interference when few byways traveled and to times solicitors to the least signature- petition are at the Center. The number people limited. gatherers may also be time, place, and manner reasonable designing political in
rules, a draw on other instances which court can activi- accommodated with other and social action have been as for instance private property, on and on ties both by plaintiff against brought In an earlier case labor relations. (not Ltd. Lloyd Corp., signature appealed), solicitors petition Stachon, (Multnomah No. A8406- County et al. Cir Ct v. such a 03528), Dale in fact entered Judge then Circuit William about its express no view qualified detailed and order. We made in that provisions, which rested on the record particular be devised. case, it that a detailed order can but shows misunderstanding, to avoid repeating, It bears plain- this case as to which must be decided in issue intervention, legal not all scope equitable tiffs claim is the of either might arise from the acts and liabilities that rights denied, limited, qualified may or equitable An order be party. technically or a trespasser is a regardless whether a defendant plaintiff s main protects an order When nuisance-maker. with its interference minimizing or eliminating interest customers, issues well any legal residual tenants and their remedies at law. be left to
III.
case,
declaratory
judgment
if a
In this
I
it also will not
ordinary equitable principles,
applies
properly
I,
plaintiff.
Article
section
violate the constitutional
“remedy
to a
10,
plaintiff
entitles
of the
Constitution
interest; property
to its
injury
of law for
done”
by due course
in advance!
equitable
intervention
entitle
does not
fori
an easement
not create
proper
A
order will
any injury.
plain-1
else,
otherwise take
anyone
or
nor
signature-gatherers
just
or
com-l
process
due
use without
tiffs
Oregonl
I,
to Article
section
contrary
pensation
See|
Amendment.
to the Fourteenth
Constitution
Pruneyard
Robins,
Shopping Center
S
US
100 Ct
We need not engage federal or state constitu- tional declaration. express any opinion We do not as to the dissent’s analysis. constitutional Both sides asked for more *13 than are present entitled to on the record. There is no proper declaratory injunctive or order. The circuit court’s lifted, is it beyond because went far justification. its declaratory The judgment issued the circuit court also is too broad general.7 and too declaratory The judgment of the trial merely incorporates court from complaint the plaintiffs .phrasing “plaintiff is entitled to exclude defendants from going plaintiffs on any purpose for other than shop- ping doing business with or its tenants.” The case is remanded to the circuit court preparation of an order consistent equitable with the principles discussed herein.8
We do not award attorney costs or fees.
PETERSON, J., dissenting. C.
I join in opinion of Justice Carson. I am impelled to add majority, unction, without has interred over years one hundred of good trespass injunction law. This three- opinion sentence only will be its tombstone.
CARSON, J., dissenting.
I. MAJORITY’S ANALYSIS
A. INTRODUCTION
fleece,
Shorn of its obfuscating
the majority opinion
holds that trespassers may
enjoined
not be
from further tres-
passing
long
so
as the trespassers are gathering signatures for
petition.
an initiative
Because I believe that this case should
be analyzed differently
favor,
in
resolved
I dis-
sent.
Robertson,
These are not the same. See State v.
(1982).
use might conduct that a case at find to trespass. e a
B. THE MAJORITY’S ANALYSIS NOT IS SUBCONSTITUTIONAL hypothesiz the facts amidst occasional stating After stating well-recognized ing, emphatic majority adjudication avoid constitutional principle that court should ordinary legal premises. it decide a case resort to when established, doubt, principle, no in deference This a sound court, rather than this legislature, It is the legislature. public pol competing that should balance and accommodate should thus avoid possible, icies and interests. When courts adjudication.” Cologne v. West- “granite constitutional Associates, 1201, 1210 469 A2d 192 Conn farms constitu- states that “will discuss majority necessarily provisions interpretations without tional Or at constitutional or violation.” 307 680. deciding any added.) use of the word “neces- majority’s (Emphasis wish to allow readers to sarily” puzzling. majority Does majority in fact decides divine for themselves whether Is the uncertain majority or violations? constitutional *14 Or, rights it or violations? whether determines constitutional to communicate it majority attempting is the rights or violations? In unnecessarily decides constitutional event, makes it any plain reading majority opinion a of the decides several abundantly majority expressly clear that swearing allegiance to the rule issues while constitutional adjudication. against premature constitutional in chancellor’s on as a law court majority The comes only a subconstitutional performing In the clothing. guise analysis, states: majority case, declaratory judgment injunction if
“In this ordinary equitable principles, will not properly applies it also I, plaintiff. Article section violate the constitutional ‘remedy 10, plaintiff to Oregon entitles of the Constitution interest; property injury for done’ its due course of law equitable in advance plaintiff intervention not entitle does of signature-gatherers proper an easement for any A order will not create injury. anyone else, plain-
or
nor otherwise take
process
just
com-
due
property
tiffs
for
use without
18,
I,
Constitution
contrary
pensation
to Article section
Pruneyard Shopping
Amendment. See
or to the Fourteenth
2035,
Robins,
L
64 Ed 2d
447 US
100 S Ct
Center
(1980).”
Thus, though even the majority declares that need not “[w]e engage any federal or state declaration,” constitutional Or at it is clear that the majority impor- has made several tant constitutional holdings (1) that plaintiff cannot — get an to remedy present injury resulting from (2) defendants’ threatened future trespass nuisance; proper order, that under a there will be no unconstitutional taking plaintiffs property. majority opinion clearly is not a analysis, subconstitutional and the majority should acknowledge that it has made constitutional holdings. majority’s constitutional holdings merit further majority
comment. The
notes that
court applying a com-
“[a]
mon-law rule or fashioning
equitable
order must observe
constitutional principles as much as a legislative or admin-
body.”
istrative
reasonable restrictions on by any part plaintiffs premises defendants of may also place time, place, reasonable restrictions the on and manner seeking petition signatures plaintiffs mall and on its dis- walkways as to reduce or eliminate so interference * * traction *. [in mall] * * * *
“* * *
protects plaintiffs
When an order
main interest
minimizing
eliminating
with
tenants
or
its
interference
customers, any
legal
may
left
their
residual
issues
well be
plaintiffs
(Emphasis
remedies
law.”
Even fashioned injure rights, majority refuses to plaintiffs property will 10, Thus, the I, major- in an Article section discussion. engage I, 10, a requirement into Article section ity opinion reads remedy types injuries, certain be obtained for more an e.g., injury injury for an which is than minimal or for I, reduced or minimized. Article section which has not been or must expressly impliedly injury does not state that rise actionable; severity recognized to a certain before it will be rather, provides “every man shall have rem- this section person, in his edy by injury due course of law for done him property, reputation.” or holding constitutional majority’s “[a] signature- for order will not create an easement
proper else, prop- take anyone or nor otherwise gatherers process just compensation use due erty for without I, Oregon Constitution or contrary to Article section Amendment,” absolutely Or at Fourteenth important Oregon made this analysis. majority devoid a mere con- nothing with more than holding constitutional cite a United States clusory majority statement. The did authority, case but constitutional Supreme Court analysis.1 The independent of federal provisions are examined Rights, Linde, Things Rediscovering States’ 9 U Balt First: Bills See First L Rev 379 *16 Constitution, Constitution, Oregon like the California State certainly interpreted be as more providing protection under federal these circumstances than the constitution. See Robins, 74, 81, 100 S Ct Pruneyard Shopping Center v. US interpreted L 2d majority 64 Ed That I, 18, consistently Article federal section with standards no analysis excuse for lack reasoned under law.
Also, majority any fails to opinion articulate test for determining what a taking just constitutes without com- pensation. Apparently, private prop- use nature of the erty issue, is a Here large consideration. a mall is at but what is so, rule? Does size make a difference? If where is the center, cutoff —a mid-size shopping grocery a free-standing store, store, a convenience neighborhood small store? Does the fact that a mall attracts large people numbers of make a so, difference? If where is the line respect places with other large where numbers people congregate, superior affording opportunities for signature-gathering, sports such as sta- diums, halls, theaters, convention large office or apartment buildings, factories, supermarkets, department stores? The majority provides no guidance.
The nature of the signature-gathering apparently is consideration, also a vague but the majority gives directive the is that under “proper order” there will be no without taking just compensation. Evidently, “proper order” means order stating time, place, rules, reasonable and manner but the majority provide should guidance to what would con- stitute a proper order.2 sum, the majority’s opinion clearly is not sub- Therefore,
constitutional. majority’s statement that “we conclude on a subconstitutional level that is not injunction received,” entitled to the broad it sought and simply majority’s approach incorrect. The to this requires case holdings constitutional which should be addressed with reasoned analysis. majority opines: “Clearly gather signatures upon can [defendants
private property]
quietly,
peaceably.
reasonably,
if
do so
But defendants are
engage
noisy
express
opin
entitled to
or street theater to
those
exhortations
statement, however, provides
guidance.
ions.”
C. MAJORITY OPINION holding I discussion and majority’s now turn part, concerning provides, the trial court’s which injunction from hereby enjoined that “defendants are restrained and upon expressions to exercise their entering plaintiffs property part this opinion.” majority correctly recognizes far, goes also majority opinion too but the goes too far. stated,
Simply
the facts are
December
“[i]n
*17
the
on three
gather signatures
defendants entered
Center
petitions.”3 307
at 678-79. Defendants did not
initiative
politics
the Center.” 307
“peaceably
unobtrusively
and
talk
signature-gather-
Or at 686. Because the instant facts involve
expression
opinion,
portion
ing rather than mere
of
“expression
opinion”
of
should
injunction
trial court’s
about
dealing
part
than
with this
trial
be stricken. Rather
manner,
straightforward
in this
and
simple
court’s
discussion,
into a
and emotional
majority lapses
lengthy
cannot
holding:
even
with
be
concludes
“[Defendants
entering
express
opinion,
the Center to
their
so
enjoined from
interfering
they
reasonably and without
with
long as
do so
“If
I
under
perhaps
dicta had the force of
could
not,
indulgence
dicta],”
does
majority’s
stand
but “[i]t
[the
dicta,’
merely
I
which
object
‘unnecessarily
broad
Freeland,
367, 384,
295 Or
analysis.”
serves to confuse
State v.
omitted).
(1983)
J., dissenting;
(Jones,
P2d 509
citation
waters,
wrong.
but
is often
Dicta not
muddies the
also
do
Additionally,
should
write dicta where we
not
not
“[w]e
or advice.”
implications
analysis
of our
fully foresee the
(1980) (Tanzer, J.,
Burks,
75, 97,
There are
mandatory
telephone
(1)
petitions
prohibit
local measured
were
initiative
(2)
change
service;
supersede
statutory
definition of “radioactive waste”
(3)
plant opera
facility
prohibit
power
study payment procedure;
energy
nuclear
permanent
site is
tion until a
waste
licensed.
expressions
opinion” upon plaintiffs private property;
might
trespassers,
might
trespassers
some
and,
not be
but some
be
by injunction.
so,
if
could be barred from the Center
For
example,
person
plaintiffs private property
if a
were to enter
purpose
displaying political sign
quietly
for the sole
while
walking throughout
might
trespasser;
Center,
he
abe
but
people
casually
political
if several
were
to discuss a
candidate
(that
shopping
upon plaintiffs
plaintiffs
while
at the
is,
Center
while
private property
purpose
scope
for a
within the
there), they might
trespassers.
invitation to be
expressions
not be
Because
opinion
myriad
of
settings,
take
forms and involve count-
majority’s
less factual
extensive and overbroad
ignored.
dicta should be
Apparently,
justification
holding
for its
on facts
presented
majority goesthrough
not
case,
in this
a number
hypotheticals.
example,
majority
“Taking
For
states:
* * *
plaintiffs position literally
it could allow solicitors to
petitions
circulate
for measures favorable to its business inter-
opposes.”
ests but not for measures that it
IS BLENDED AND WRONG majority’s I turn now convoluted discussion of trespass. Although nuisance and stitute both a the same conduct con- trespass nuisance, and a are distinct torts. 696
Furthermore,
an
question
injunction
the
of whether
should
analyzed differently
trespass
nuisance. The
issue is
under
and
assumption that
there is no distinction
majority’s implied
trespass
the
of
and nuisance
incorrect.
between
law
is
begins
continuing
The majority
its discussion of
tres
partial
continuing
and
law with a
statement of
pass
nuisance
stating
than
the
trespass
fully
continuing
law. Rather
law of
continuing trespass
the
then
law
trespass,
majority
obscures
making
misleading
that “an
the
and overbroad statement
injunction
discretionary
subject
equitable
remains
and
to
con
siderations;
right.”
is not available as a matter of
307 Or at
law
continuing trespass
681. The
then blends
and
majority
by citing
inapposite
sup
nuisance
two
nuisance cases
law
continuing trespass
for this
about
port
overbroad statement
provides
quote
The
next
majority
inapposite
law.4
from
Co.,
221
P2d
Reynolds
Martin et ux v.
Metals
Or
342
790
(1959),
(I960).5 The
cert den
697
of
real
“the cases show that
invasions
another’s
stating that
enjoined,
are
when the invasion
always
even
liability for
qualifies
‘trespass’
purposes
damages.”
as
683;
proposition
This
is
307 Or at
see also
continuing trespass existing analysis, majority ignored has law, cases, law, inapposite cited blended and nuisance trespass Furthermore, and made overbroad statements. because the law, turns majority its on everything decision nuisance trespass states dicta be majority about law is and should ignored.
E. THE MAJORITY’S NUISANCE
ANALYSIS IS WRONG The majority does not state expressly employing law, nuisance majority but it does. The holds: issuing
“The trial injunction court went too far in providing hereby enjoined that ‘defendants are restrained and entering upon plaintiffs private property from to exercise expressions opinion signatures their gather or to in the process plaintiffs permis- initiative and referendum without they Clearly reasonably sion consent.’ if can do so peaceably. Moreover, plaintiff injunction is not to an entitled prohibit peaceful signatures solicitation of the mall or on Co., 86, 96, (1959), Metals 790 US P2d cert den 362 Furthermore, trespass balancing. suggests not all cases Martin involve involving trespass pattern” preliminary question cases not a “familiar be must determining trespass: addressed in whether intrusion at issue actionable in plaintiffs neither defendant’s conduct nor the use “[W]here within fall[s] trespass pattern past preliminary inquiry familiar courts are faced with protectible trespass.” to whether the has a interest under law of 95. Id. at trespass pattern obviously person placing upon The familiar includes a his foot another, land of without authorization to do so. Because defendants’ conduct physically invading trespass the surface land falls within familiar pattern, preliminary question the above need not be considered the instant case. thorough relating continuing Below a discussion rules tres pass. supra, accompanying See and 5 *20 activity premises. sig- The solicitation of commercial on the patrons in and substan-
natures of does not of itself constitute policy signature- public tial The behind the interference. process equitable gathering limits enforcement of preferred signature at total exclusion of solicitors.” 307 Or added.) (Emphasis 687. “substantially interfere” are “reasonably” words exists, a
labels that are used in whether nuisance determining apply trespass but not under law. do law,
Although majority applies nuisance the of this law: In a majority provides only partial a statement ** * very is at case “which a real interest stake court should not issue an if it would cause serious injury equitable unless without relief interest equivalent experience the owner his would a more serious injury.” Or at 684. 307 complete dis majority provided should have private A nuisance “is an invasion of
cussion of nuisance law.
enjoyment
in the
an individual’s interest
use
land.”
Co.,
629, 634, 488 P2d
Raymond v. Southern
259 Or
Pacific
(1971).
of land is
enjoyment
An “interference with
use
unless that interference be both substantial and
actionable
Meadows, 184
Amphitheaters,
Inc. v. Portland
unreasonable.”
(1948)
added);
336, 348,
see also
(emphasis
“An injunction does not issue
aas matter of absolute
or unqualified right” once a
has
nuisance
been established.
Inc.,
Jewett v. Deerhorn Enterprises,
supra,
The comparative
injury
provides
doctrine
that a
“court
refuse an injunction in certain cases where the
hardship caused to the
defendant
the injunction would
greatly outweigh the benefit
to
resulting
plaintiff.”
York v.
Stallings, supra,
added);
York does not specifically state how the interest of
public
factors into the balancing process.
public
inter-
est, however, must rise to the level of an important public
interest before it will be given significant
weight
the balanc-
ing process. See Jewett v.
Inc.,
Deerhorn Enterprises,
supra,
Furthermore,
This is another do constitute nui- injunction to an for intrusions analysis Thus, abundantly majority’s clear sance. turns whether a nuisance exists. on majority believes
Apparently, signature-gathering activity that to an entitled constitutes nuisance: *22 signature-gathering the
“The record reveals that some of activity temporarily interfere with commercial activ- does the ity apparently gatherers Some ‘buttonhole’ at Center. public case, have full to forums. The In the instant defendants access traditional public question if serious inconvenience or loss would result defendants is whether a below, private property. compelled plaintiffs As discussed are denied access public simply question If use the forums for no. defendants traditional answer to this sidewalks, plaintiffs (such public park, adjoining and as the streets their activities defendants, any public private property), they, interest served will and likewise only marginal inconvenience. suffer plaintiffs allegations, majority addressing evaluate the we The states: “Before public injunction’s interest.” Or at 684. effect on the heavily potential up and set in customers others card tables project Such trafficked areas facilitate the at hand. activity enjoined. petition sig- obtrusive can be not all But nature-gathering activity plaintiffs premises on can be enjoined.” (Emphasis original.) at 687.
Thus, activity does tem- “signature-gathering [that] porarily activity Center,” interfere with the commercial at the holds, (1) majority analysis, that activity without such (2) nuisance; constitutes a the “comparative injury doctrine” favor; (3) plaintiffs is decided in and enjoining activity such public would cause no serious loss or inconvenience. bottom, majority badly
At confuses nuisance is, however, majority’s analysis law.11 It clear that thus example analysis Below is an of a traditional nuisance which reaches the same opinion. majority majority approach. as the result The should used have such an injunction against unreasonably interfering Plaintiff seeks an defendants for with plaintiffs property. question use of its The first whether defendants’ conduct nuisance; is, constitutes that does defendants’ conduct constitute a substantial and plaintiffs enjoyment unreasonable interference with use and of its land? Some of peaceful overly activity simply defendants’ conduct is and Such not intrusive. does not interference, rise to level of a substantial and unreasonable and does therefore not Thus, conduct, analysis constitute a nuisance. for such a nuisance here ends because Accordingly, law, plaintiff no nuisance exists. under nuisance entitled to not an prohibit peaceful overly signatures and not intrusive solicitation the Center. record, however, activity signature-gathering reveals that some of the does temporarily activity example, with interfere the commercial Center. at the For some gatherers apparently potential up “buttonhole” card customers and others set tables to project unnecessarily facilitate the sive, they hand. Because activities such as these are intru- are a substantial and unreasonable interference with use and enjoyment of its land therefore constitute a nuisance. query respect with second to such conduct intrusive concerns com- doctrine; is, parative injury hardship would to defendants caused injunction greatly outweigh resulting plaintiff. state benefit Defendants compelled plaintiff’s property (1) plain- want access for two reasons: because private property provides weather; (2) because, tiff’s shelter from the in terms of hour, signatures per using plaintiff’s private the number of obtained find defendants property using plain- surrounding more effective than the traditional forums (one studies, tiffs did defendant testified while he not have “[t]he signatures hourly amount of on an on basis sidewalk area would be the area twenty-five[, signatures forty, average”). amount was t]he inside over on Although it is clear from the record how much defendants’ activities are intrusive, compelled we from if conclude this evidence that defendants were denied plaintiff’s private some, property, access to defendants would sustain but not substan- tial inconvenience. hand, considering open, carrying theOn other the hours that the Center is on activity per day. intrusive interferes with hundreds of customers This interference plaintiff’s constitutes a direct assault on the efforts of to induce tenants *23 analysis a step turns on the first of nuisance nui- —whether of the Accordingly, majority’s pub- sance exists. discussion irrelevant, entirely unnecessary interest lic therefore constitutes dicta.
II. THE DISSENT’S ANALYSIS A. DEFENDANTS’ SIGNATURE-GATHERING THE ACTIVITIES UPON CENTER CONSTITUTE AN ABLE TRESPASS ENJOIN CONTINUING ultimate that defendants complaint states facts trespassed private Center. upon property have of the Addi- Thus, tionally, trespassers. facts show defendants are analyze trespass I would this case under law.12
A
primary
possessory
attribute of the
interest
it. 5
power
using
exclude others from
Powell
¶
this court has
Property
Accordingly,
on Real
706[4]
trespass
“any
land of
[upon
defined
intrusion
another]
possessor’s protected
which invades the
interest
exclusive
by
possession, whether
intrusion is
visible or invisible
by
only by
which can be measured
pieces
energy
matter or
et
physicists.”
Martin
ux v.
language
the mathematical
Co.,
Reynolds
Clearly,
Because landowner exclusive land, land, he use subject legal sion his decides the of his *24 limitations,13 in turn determines the extent of his which words, of possession exclusive his land. other a landowner power scope possession has the to define the of his exclusive A for persons desig land. landowner who invites onto his land does purposes right posses nated not his to exclusive waive sion; contrariwise, upon intrusions his land the scope outside trespass. plaintiff of his constitute invitation Here has invited public purposes onto Center for related to the tenants, plaintiff plaintiffs e.g., business of browsing, shopping or obtaining services. Plaintiff has not an extended any invitation for the enter to the Center for other merely purpose. By inviting prop onto the Center for erty these limited did purposes, plaintiff thereby not lose possession. person its to exclusive Because defendants ally intruded upon scope Center for a outside the purpose invitation, plaintiffs defendants interfered with possession, thereby use, exclusive its Accordingly, land. Furthermore, defendants’ conduct constitutes trespass. defen dants’ trespass conduct constitutes a continuing they because informed would continue to unless trespass al., enjoined. Hoptowit 317, See Bros. v. et 193 Or 237 Seufert (1951), 949 (1952); Dean, P2d cert den US Chapman 343 926 v. 475, 115 (1911). 58 Or P 154 sure,
To be
trespass
a
case the social value of
“[i]n
conduct,
prevent
defendant’s
its
efforts
harm and other
tend
justify
circumstances that
an intrusion
be
cannot
con-
sidered
the trier of
facts”
whether
determining
defendant’s intrusion constitutes
trespass.
Georgia-
Davis v.
239,
(1968).
Pacific,
243,
251 Or
704 onto Cen- impact minimized the defendants’ intrusion change does not the fact that defendants’ conduct con- ter trespass. stituted repeated seeks to defendants’ tres enjoin
Plaintiff
if
trespass
A
will not
there is an
pass.
enjoined
adequate
be
See,
Reed,
R.
v.
remedy
e.g., Oregon-Wash.
at law.
& N. Co.
417, 169
342, 170
(1918);
398,
P
P 300
Garrett v.
Bishop,
Or
349,
well-settled, however,
354-55,
It trespass to note that a continuing doctrine”; analysis “comparative injury does not involve the is, interest, parties’ not injuries are balanced.15 Public however, trespass, only is considered in a continuing but very limited applicable manner. The rule is stated in Minto. In Minto, the defendant was company a which contracted to supply the inhabitants of Salem with water. The defendant had an plaintiffs filtering easement use land for certain systems, but made way use land in such plaintiff exceed claimed scope its easement. The defen- beyond dant’s use of his land the scope of the easement con- and, stituted continuing trespass accordingly, plaintiff sought an injunction. The court stated: “* * * though Even there continuing trespass has been a and a
multiplicity
plaintiff
of actions would result if the
were obli-
gated
law,
to seek
equity
redress at
restraining
will
raise its
if, by
doing, great
arm
irreparable injury might
so
result
* * *
public.
We are not
present
convinced that the
system
only
filtration
way
used
defendant
adequate
which an
pure
supplied.
amount of
water can be
As a
economy
matter of
and convenience it
any
excel
other
* * *
plan, but such
equity
reasons
should
cause a court of
[not]
equitable
sought.”
refuse the
relief
Minto v. Salem Water
Co., supra,
added.)
etc.
(Emphasis
part upon another, parties’ of it encroaches the land of courts consider relative hardships; however, plaintiffs great weight weighing interests are accorded this See, e.g., Andruss, 308-09, process. Tauscher v. P2d 401 40
706 facilitating public par- at public interest issue then, question, is: If law-making process. in the ticipation trespass upon continuing from their enjoined defendants are injury great irreparable will and plaintiffs private property, state that want public result to this interest? Defendants (1) plaintiffs property for two reasons: compelled access to from the plaintiffs property provides shelter private because weather; (2) because, signatures and in terms of the number plaintiffs hour, using private defendants find per obtained public for- using more effective than the traditional surrounding This evidence shows plaintiffs property. ums to compelled access that if defendants were denied defendants, and interest private property, likewise defendants, marginal sustain inconve- served would Thus, public interest would not suffer nience. the relevant Furthermore, the inconve- great nience caused forums irreparable damage.16 and to relegating defendants traditional equity Accordingly, court.
will not bind the arm of an stop to defendants’ tres- injunction to an plaintiff pass upon entitled private property. its I, HAVE ARTICLE
B. DEFENDANTS NO 8 RIGHT OR CONSTITUTIONAL SECTIONS AT THE CENTER TO GATHER SIGNATURES they have con- I now turn to defendants’ claims that prem- Center’s signatures upon solicit stitutional They do not. ises.17 showing denial is a of evidence that a It should be noted that there lack adversely process. compelled has affected the initiative For access to the Center 3) (see instance, petitions forming case footnote all three the basis this initiative 4, 1986, signatures qualify General Election. for the November
received sufficient injunctive declaratory filed counterclaim for and Defendants an answer and relief, asserting: I, Oregon right under Article sections and 26[J “Defendants have IV, Oregon Constitution to and Article section 1[J Constitution under Lloyd petition signatures
gather in the Center.” initiative requested Defendants a decree as follows: eject “(a) attempting enjoining restraining from a decree prosecution Center, threatening Lloyd with criminal defendants
defendants from
them;
against
trespass,
bringing
for
annual civil suits
for
“(b) declaring
[cjhapter
under
that defendants have a
under ORS
Center;
Lloyd
petition signatures
gather
initiative
Constitution
“(c)
against plaintiff
judgment
in favor
for defendants!’]
of defendants
herein;
necessary
by plaintiff
costs and disbursements
incurred
Myers,
“(d)
pursuant
to Deras
attorney
P2d 541
fees
for
(1975);
just.”
equitable
“(e)
deem
relief
the court
such other further
*27
By way
background,
Supreme
the United States
Court has decided the issue in this case under the United
Tanner,
States
Lloyd Corp.
Constitution.
407 US
(1972),
S Ct
33 L Ed 2d
plaintiffs,
three anti-war
activists,
sought
declaratory judgment and an injunction
restraining Lloyd Corporation
interfering
from
with their dis-
Lloyd Center,
tribution of anti-war literature within the
coin-
cidentally the same shopping center involved in the instant
plaintiffs
they
case. The
claimed
had a right to distribute such
literature in the
Amendment;
Center under the First
no state
constitutional or statutory provision was at issue. The Court
“
purpose
noted that the
Lloyd
of the mall in the
Center is
‘to
easy
make
shopping
pleasant,
help
and to
realize the goal
* *
of maximum sales
*. Here the
shopper
isolated from the
noise, fumes, confusion and distraction which
normally
he
along city streets,
controlled,
finds
and a
carefree environ-
”
provided,’
ment
atUS
and that
there was a
“considerable effort being made to
shoppers
attract
and pro-
spective shoppers, and to create ‘customer motivation’ as well
as customer goodwill.”
The Court concluded that the argument of those seeking constitutionally compelled private access to of the Center then existing
“* * * misapprehends
scope
of the invitation extended to
public.
The invitation is to come to the Center to do
* * *
business with the
tion to the
open-ended
tenants.
There is no
invita-
public
any
to use the
purposes,
Center for
and all
incompatible
however
and
with the interests of both the stores
shoppers
whom
serve.”
The Court also stated that property does not “lose its private merely character because the public generally designated purposes,” and that
invited to use it for
“[t]he
privately
essentially private character of a store and its
owned
large
abutting property
change
being
does not
virtue
shopping
stores in a
center.” 407
clustered with other
modern
Court, therefore, held
had not
at 569. The
that the Center
US
plaintiffs]
“to
use as to entitle
been dedicated
[the
rights.”
the asserted First Amendment
exercise therein
,570.
the Court denied the
access
Accordingly,
US at
handbills.
purpose
distributing
to the Center for the
trespass.
The case at bar involves
Common-law
have,
centuries,
of an owner of
protected
courts
*28
prop-
use and
of his
possession
real
to the exclusive
centuries,
developed
courts
“strict and severe
erty. Over those
enforcing
a
that
trespass”
the action of
as means
rules of
principle
a fundamental
that
right, for it has been
“[i]n
immunities that are
privileges, powers, and
rights,
bundle of
property, perhaps
impor-
of real
the most
by an owner
enjoyed
realty.”
to the exclusive ‘use’ of the
Prosser &
right
tant is the
(5th
1984).
67,
power
ed
Keeton, The Law of Torts
13§
by
duty
protect
right
of the courts of this state to
that
trespass
common-law
action have never been
means of the
opin-
are illustrated in dozens of this court’s
questioned and
Cresswell,
418,
(1886),
ions,
13 Or
422
to Koos
from French v.
(1982).
Roth,
670, 690,
In
of a
his
retail
to revoke
time
particular
any
invitation to
members of the
law,
by
law.19
principle Oregon
both
statute
common
Not
once since
became
state has this court intimated
I,
8 and
historic
sections
of Article
somehow limit this
right,
they supersede
trespass
prevent
or that
the law of
against trespassers
from
operating
who wish to
con-
engage
including
or
constituting
expression
conduct
duct —
assembly
the landowner does not wish to have carried
—that
out upon
premises.
his
Tanner,
Supreme
the United States
Court stated
“Although
protected
accommodations
the values
between
First, Fifth,
Amendments are some-
[the
Fourteenth]
necessary,
special
times
properly
and the courts
have shown a
Amendment,
guarantees
solicitude for the
of the First
this
trespasser
Court
never
guest
has
held
uninvited
general rights
speech
property pri-
exercise
of free
on
vately
nondiscriminatorily
private pur-
owned and used
poses only.”
such or are not to the or when the entrant not so; privileged otherwise licensed or to do or “(b) premises open public being lawfully To fail to leave that are the to after person charge. directed to do so “(4) ‘Open public’ premises nature, physical to the means which their function, custom, usage, notice or lack thereof or other at the time circumstances person permission would cause a reasonable believe or to that no to enter remain is required. “(5) charge’ person, representative employe ‘Person means a a or of the person by ownership, position premises tenancy, who has lawful control of official relationship.” legal or other 19 course, race, Of a retailer to with of not refuse do business someone because religion, sex, status, origin. marital national color or ORS 30.670.
Likewise, rights has to tres- granted this court never such defendants, to do passers perceive such as and I no reason so present in the case. above, Tanner
As held a shop- discussed that when public center its ping opens private property owner Amendment to the United purpose shopping, of First thereby upon does not bestow a States Constitution to use The right shopping expressive purposes. center for Fifth Fourteenth Amendments to the United States Con- protect private property Although stitution certain rights. safeguard rights First and Fourteenth Amendments certain assembly, do speech they simply affirmatively free not upon grant right speech assembly rights a exercise free Oregon’s constitutional private property another. I, 18, of scheme is similar. Sections 10 and Article rights. private property create Oregon Constitution certain I, certain free Although sections 8 of Article reserve assembly rights, also do not speech these sections pri- compelled a expressly privilege establish access vately for the exercise of these property owned another rights. do
Because the First and Fourteenth Amendments speech rights upon verbalize free right not exercise speech free privately property, another’s owned and because Tanner, private rights were at rights property odds with private make Court was with the decision whether to faced court, This rights speech rights. subordinate to free Oregon likewise, is with under confronted a similar decision Court, however, Tanner did not analysis. constitutional policy declara- upon freewheeling judicial decide that case Rather, was thought superior. tion which concerning whether, pre- the facts upon the Court focused under simply rights. sented, way speech had to free property rights give an was The Court determined that such accommodation Tanner Court’s unnecessary. approach is sound. view of which impose personal
This need not its court control rights at issue should of the constitutional competing because accommodation policy not announce necessary. This court should function. public policy legislative because declaration *30 recently This court said:
“* * * * * * step courts have taken the further that in the some statutory public policy, of court absence of sources should (described justify policy law in articulate rules of terms self-servingly ‘public’ policy), a bit or ‘social’ other words, adopt legislative making policy mode rather than judicial policy implica- search for others or for the made * ** existing principles. tions of ** * freewheeling judicial ‘policy “We have not embraced * * Co., Curry 30, Donaca v. declarations’ (1987). (Footnote omitted.) P2d 1339 true legislature
While it is has been asked at least statutory “right” twice to create a part on members of public to private shopping premises use for the center purpose gathering petition (see signatures SB Legislative Session, Session), Legislative SB legislature has yet public policy announce on issue. this course, legislature Of the failure of the to act does deter- mine or policy. adopt set I would the Tanner approach, Court’s and thereby legislature allow the to consider and accommo- date the competing public policy rights and interests issue. at legislature If the legislation compelled enacts allowing access to privately property owned for this signature-gathering, court, presented when with the case con- proper testing the stitutionality of legislation, such would fulfill its role judicial of determining whether legislature exceeded constitu- tional in enacting bounds such legislation. above,
As noted the Tanner Court’s decision turned on several factual determinations —that alternative means Lloyd’s communication existed and that privately owned property had not public been dedicated to use toas entitle the expressive to exercise rights thereon. Because Tan- ner shopping substantially involved same center with case, same facts and issues I involved this find Tanner uniquely helpful disposition of the case bar.
I now return to the facts in discussing plaintiffs claims. privately Has dedicated its owned purpose gathering petition for the sig- initiative natures? If plaintiff privately property, so dedicated his owned analysis this would end be because there would no conflict speech assembly between free private property rights. operated The Center built and is for com- purely was Tanner, purposes. mercial As alluded to in is invited to the business of purposes into Center related *31 tenants, plaintiffs e.g., browsing, shopping or and plaintiff has an for obtaining services. Plaintiff not extended invitation any purpose. public to enter the Center for other private not character and become simply Center did lose square merely of town because equivalent the functional designated to facilities for public invited the use the plaintiff at all This conclusion not affected purposes. commercial has areas and interior walk- parking the fact that the Center art, benches, directories, informa- ways gardens, that contain business tion and other facilities for the convenience of booths Therefore, plaintiffs no patrons. there has been dedication public use operated center to as privately shopping owned and I, and to exercise Article sections 8 to entitle defendants rights thereon.20 claims, I explaining defendants’ constitutional adequate alternative avenues question
return to the whether petition exist. Similar to the obtaining signatures initiative Tanner, the record in the instant case circumstances private property access to compelled plaintiffs reveals that necessary petition to gather sig- for defendants initiative forth, contrary, if previously On the set defendants natures. {e.g., public to traditional forums side- relegated are streets) surrounding property, plaintiffs private walks and only marginally in their defendants will be inconvenienced process. process This will be slowed signature-gathering down, Accordingly, it would be an unwarranted not blocked. require property rights to infringement 26, rights I, 8 and yield to the exercise of Article sections avenues of adequate under where alternative circumstances petition signatures exist.21 obtaining initiative state laws and interprets this court its own Although decisions, holdings of federal independent constitution is sound there no reasoning Tanner approach Oregon law. out a different solution under reason to carve had not been plaintiffs privately owned Because free defendants exercise use as to entitle dedicated and because alternative assembly thereon speech 2219, 33 Tanner, 551, 567-70, 92 Lloyd Corp. L S Ct Ed 2d 131 v. 407 US Tanner, Lloyd supra, Corp. n 21 at 566-67. See exist, initiative I gathering petition signatures means con- speech clude that defendants not exercise the free I, assembly rights protected Article sections 8 and Oregon Constitution on property privately owned and used nondiscriminatorily private purposes.
ANC.
INJUNCTION WOULD NOT VIOLATE
DEFENDANTS’ CONSTITUTIONAL RIGHTS
question
injunc-
fundamental
here is whether an
tion
this
consistent with
dissent would restrain defendants’
I,
rights provided in
Article
sections
and 26. It would not.
Although
United States Supreme
appears
Court
glossed
analysis
Tanner,22 I
have
over
state action
must
squarely face the issue whether the issuance of
consistent
implicate
I,
with this dissent would
Article
sections
*32
26,
Oregon
8 and
of the
Constitution. Sections
apply
8
26
only
aif
“law” has been “passed.”
question,
then,
The
whether
court-ordered
is a “law” which has been
“passed.”
plain reading
A
of the phrase
law shall be
“[n]o
passed” suggests that it is a
upon
restriction
lawmakers other
courts,
than
because courts
pass laws,
do not
courts issue
opinions.
Spencer,
225,
State v.
228,
289 Or
In Crouch v. Central Labor 612, 134 Or 293 P (1930), 729 plaintiff injunction barring obtained an cer- tain picketing activities labor plain- unions in front tiffs restaurants. The court a portion eliminated injunction which prohibited Oregon Labor Press from displaying “copy Labor Press containing any reference whatsoever his said places of narrowing business.” In the injunction comply I, 8, with Article section the court stated: 22 appears question It that the state action coterminous the issue was with purposes. whether the land was dedicated to the for First Amendment subject
“The as much to the Constitution of the courts are legislature of the state. courts should not state is the I, 8, make an order violation of said section [A]rticle Constitution, though refers to a law.” that section itself 134 Or 622. that should support proposition other cases courts
Two
I,
Green,
8. In
not act in violation of Article
section
Wheeler v.
99,
(1979),
I,
P2d 777
the court held
Article
Or
8,
prohibits
punitive damages
the award of
defama
section
an
prevent
extended to
award of
holding
tion cases. This
was
emotional dis
punitive damages for intentional
infliction of
Stores,
May
Dept.
means in Hall v.
tress
verbal
(1981).
impliedly
rest
131,
of Article sections 8 26. Michigan Lobby, 423 the decisions in Woodland v. Citizens (1985), Major, 139 Wis NW2d 337 and Jacobs v. Mich upon 492, 407 (1987), proposition 2d which rest NW2d 832 con activity does not injunction prohibiting political state action. stitute does not determine the foregoing
But the
conclusion
repeatedly make the
This court’s recent decisions
matter.
a law is directed at
implicated only
8 is
when
point
section
See,
Or
(1987);
supra;
v.
Crouch
Central Labor
Stores,
all
Green,
May Dept.
supra,
supra; and Hall
in Wheeler stated:
The court
however,
damage
large
expression,
threat of
“In
area of free
the sensitive
constitutionally protected
easily
of
inhibit
the exercise
freedom
recoveries can
likely
particularly true in
expression,
This is
to be
well as its abuse.
as
remittitur,
courts,
power
over the
having
have little or no control
no
where
Green,
99,
punitive damages.”
Wheeler v.
juries
which
award
amounts
omitted.)
(Footnote
119,
Crouch an injunction against picketing aby union, eliminating only labor part
barred defendants from publishing plain- material concerning tiff in its newspaper. 134 Or at part injunc- 620-21. That squarely exclusively tion was aimed at the defendant’s speech, any conduct, and, not at therefore, clearly implicated section 8. Similarly, Wheeler and Hall held that punitive damages prohibited by awards are section 8 in tort cases where speech the gravamen Green, was the tort. Wheeler v. supra, 117-19; 286 Or at May Stores, Hall v. The Dept. supra, 292 Or at 146-47.25
In the circumstances case, of the instant an injunc- tion consistent with this dissent would not violate defendants’ constitutional 26, under sections 8 and because the injunction would be preventing aimed at a trespass rather speech than at or assembly.
D. IV, DEFENDANTS HAVE NO ARTICLE 1, SECTION CONSTITUTIONAL RIGHT TO GATHER SIGNATURES AT THE CENTER
Irrespective of whether their protected activities are I, 26, Article sections 8 and defendants they maintain that may not be inhibited in attempting signatures to obtain at the Center power because of the provided IV, initiative by Article section of the Oregon IV, Constitution. Article section people reserves to the power initiative propose “which is to laws and amendments to the Constitution and enact reject or them an independently election Legislative Assembly.” (1) Defendants contend implement when seek to above, Crouch, judicial Hall, As noted action was at issue in Wheeler and rather than statute. principles apply While the above cases involved section the same to section 26 question against because the the same —is “law” directed forbidden result against right? a constitutional *34 IV, by obtaining signatures Oregon
Article of the Constitution Center, exercis- they of the are upon privately parts the owned (2) that the ing legislative function; that it is self-evident a provides persons legislature could itself enact a law which may so petition signatures initiative do engaged acquiring (3) centers; exercising private that while this shopping something prerogatives they are entitled to like the function gather signatures upon pri- legislature, of a and can therefore parts the Center. vately owned Ini- arguments persuasive.
I do not find defendants’ misplaced. sig- is analogy I note that defendants’ tially, a of bill in the nature-gatherers’ proponent function like the as legislature the act like the legislature. The voters of state enough strength any on measure that has pass judgment to reach the state ballot. IV, section interpretation
Defendants’ of Article 1 is concerned presumes too far as it that section stretches gather signatures and right an individual’s to protecting with right private a of access to implicitly section confers provi- owner.26 The initiative objection over the its property in terms of an expressed in section 1 sion set forth collectively. This people is reserved to the right, individual but the protecting is not with section of Article IV concerned by signatures, right protected right to solicit individual I, prerequisites and until the 8 and 26. Unless Article sections with,27 ini- IV, 1, have complied section been of Article private property, Carrying through right to of access on defendants’ claim (such by petition necessity owner for consent would obviate initiative homeowner) the need for search warrants. and eliminate IV, part, requires, example, of the Constitution For Article section that: by “(b) may petition signed proposed a number An initiative law be a equal percent qualified cast for all six of the total number of votes voters to for a term at which a Governor was elected for Governor at election
candidates filing years preceding petition. of the of four next proposed only by “(c) a Constitution be An initiative amendment equal eight percent qualified petition signed of the total number of voters a at the election at which all for Governor number of votes cast for candidates years filing preceding the next term four Governor was elected petition. ‡‡‡‡ <<* “(e) petition less four months before shall be filed not than An initiative be proposed is to law amendment Constitution at which election upon.”
voted
IV,
power
tiative
is not
invoked. If Article
section
was
gather
intended
signatures,
to include
substantive
would
if
expressed, especially
have been
it were intended to
greater
regard
already
afford
individual
in this
than are
protected
Michigan
under Article I. See Woodland v.
Citizens
*35
Lobby,
Moreover,
IV,
349.
supra, 378 NW2d at
Article
section
1,
securing
is “silent as to the means of
State
signatures,”
82, 90,
163,
Campbell/Campf/Collins, 265
506 P2d
appeal
dismissed,
(1973),
E. CONCLUSION should, The majority would, and I hold that defen- dants’ signature-gathering upon activities the Center tres- are passory and enjoined. should be Defendants do not have a right I, 26, constitutional under Article sections 8 and gather signatures upon 26, the Center. Sections 8 and of Arti- I, cle are directly implicated when a court an injunc- issues tion, because those apply only sections when a “law” has been “passed.” However, courts in this state are subject Oregon Constitution, and, therefore, may not issue orders I, 26, which violate Article sections 8 and of the constitution. An injunction enjoining defendants from soliciting signatures upon privately parts owned of the Center does not violate I, Article sections the injunction because is aimed at continuing trespass and a stopping nuisance rather than at speech prohibiting assembly. IV, Article section does not expressly gather bestow substantive right signatures, nor right compelled to private property. IV, access Article provide section does not private of access to property to gather signatures over the objection. owner’s Accordingly, defendants’ under Constitu- tion have not been violated. Plaintiff is entitled a limited injunction prohibiting defendants from gathering petition sig- natures Therefore, at the Center. I would reverse the decision Appeals the Court of and remand the case to the trial court entry an appropriate injunction. opin- Justice, dissenting in this
Peterson, joins Chief ion. notes text. substantially walkways its that does not with interfere